Momand v Baker - [2020] WASC 147

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   MOMAND -v- BAKER [2020] WASC 147
CORAM:   TOTTLE J
HEARD:   5 MARCH 2020
DELIVERED          :   5 MARCH 2020
PUBLISHED           :   7 MAY 2020
FILE NO/S:   SJA 1048 of 2019
BETWEEN:   MOHAMMAD MASOOD MOMAND
Appellant
AND
STEPHEN BAKER
First Respondent
DAVID O'ROURKE
Second Respondent
KELSEY MASEYK
Third Respondent
THOMAS SMRCEK
Fourth Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE G LAWRENCE
File Number            :   PE 50619 of 2018, PE 50620 of 2018, PE 55512 of 2018, PE 53333 of 2018, PE 53334 of 2018, PE 6276 of 2019, PE 6277 of 2019

Catchwords:

Criminal law - Appeal against conviction - Where conviction entered following plea of guilty - Where appellant submits that he was not, in truth, guilty of the offence - Where appellant submits he could not in law have been guilty of the offence - Whether miscarriage of justice would result from maintaining judgment of conviction - Appeal dismissed

Criminal law - Appeal against sentence - Where appellant alleges compensation order manifestly excessive - Where quotes for compensation provided to magistrate objectively reasonable - Where no objection to quantum of compensation raised before magistrate - Appeal dismissed

Criminal law - Appeal against conviction and sentence - Where appellant alleges incompetency of trial counsel - Where appellant alleges failure by trial counsel to follow his instructions - Where transcript of proceedings reveals regular conduct of matter by counsel - Where transcript reveals counsel taking instructions from the appellant - Whether conduct of counsel caused a miscarriage of justice - Appeal dismissed

Practice and procedure - Adjournments - Consecutive late adjournment applications of criminal appeal - Where appellant seeks adjournment to secure legal representation - Where appeal without any substantive merit - Where appellant makes no progress with appeal despite earlier adjournments - Application for adjournment dismissed

Legislation:

Criminal Appeals Act 2004 (WA), s 8(2), s 9(1), s 9(2)
Criminal Code (WA), s 441, s 443, s 444
Sentencing Act 1995 (WA), s 110, s 111, s 112, s 113, s 117

Result:

Application for adjournment refused
Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In person
First Respondent	:	B Murray
Second Respondent	:	B Murray
Third Respondent	:	B Murray
Fourth Respondent	:	B Murray

Solicitors:

Appellant	:	In person
First Respondent	:	Director of Public Prosecutions (WA)
Second Respondent	:	Director Of Public Prosecutions (WA)
Third Respondent	:	Director Of Public Prosecutions (WA)
Fourth Respondent	:	Director Of Public Prosecutions (WA)

Case(s) referred to in decision(s):

Fisher v Moffat [2019] WASC 39
Huggins v The State of Western Australia [2018] WASCA 61
Lawson v The State of Western Australia [No 2] [2018] WASCA 204
Lewis v The State of Western Australia [2008] WASCA 155; (2005) 37 WAR 483
Liberti v The Queen (1991) 55 A Crim R 120
R v Inns (1974) 60 Cr App R 231
Samuels v The State of Western Australia [2005] WASCA 193;

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Momand v Baker

Details

AGLC: Momand v Baker [2020] WASC 147
Case: [2020] WASC 147
Decision Date: 7 MAY 2020

CaseChat Overview and Summary

Momand v Baker involved an appeal against conviction and sentence by the appellant, Momand, who was found guilty of criminal damage. The primary dispute was whether the conviction and sentence were legally sound and whether the compensation order was excessive. The case was heard in the Supreme Court of Western Australia. The legal issues before the court included whether there was a miscarriage of justice in maintaining the conviction, the reasonableness of the compensation order, the adequacy of the trial counsel's representation, and the propriety of multiple adjournments in the appeal process.

The court examined the appellant's claims that he was not guilty of the offence and that he could not have been guilty in law due to his relationship with the landlord. The court found that the appellant's plea of guilty was unequivocal and that there was no miscarriage of justice in maintaining the conviction. Regarding the compensation order, the court noted that the appellant had not made any submissions on the amount of compensation and that the quotes provided were objectively reasonable. The court also considered the appellant's claims about the incompetency of his trial counsel, finding that the counsel had regularly conducted the matter and had taken instructions from the appellant. The court concluded that the counsel's conduct did not cause a miscarriage of justice.

The court further addressed the appellant's consecutive applications for adjournments to secure legal representation, noting that the appeal lacked substantive merit and that the appellant had made no progress despite previous adjournments. The court dismissed the application for an adjournment, finding it inappropriate given the circumstances. The court ultimately dismissed the appeal against both conviction and sentence, as well as the appeal against the compensation order. The court did not find any merit in the appellant's allegations against his trial counsel and found no basis to interfere with the original sentencing decision.

Orders

Orders of the court

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Background

Background to the litigation

I observe that a reparation order is in addition to and not part of the sentence imposed on the appellant.[36] However it is open to an offender to appeal against a reparation order.[37] A compensation order is an order that the offender pay an amount of money to a victim as compensation for loss of, or damage to, the victim's property and any expense reasonably incurred by the victim as a result of the offender's unlawful acts.[38] It is open to an offender at the time an application for a compensation order is made to make submissions in accordance with ss 112 and 113 of the Sentencing Act 1995 (WA) which state:[36] Sentencing Act 1995 (WA) s 110(1).[37] Sentencing Act 1995 (WA) s 110(6).[38] Sentencing Act 1995 (WA) s 117(2).112.Facts relevant to making reparation order(1)In deciding whether to make and if so the terms of a reparation order in relation to an offence, a court may take into account as evidence —(a)any evidence given during proceedings for the offence;(b)the content of any record (as defined in the Criminal Procedure Act 2004) that is relevant to the offence and that has been disclosed to the offender by the prosecutor under that Act;(c)any statement tendered, or deposition made, or exhibit tendered, at committal proceedings in relation to the offence;(d)any evidence given by a victim or the offender in relation to the making of a reparation order.(2)In deciding whether to make and if so the terms of a reparation order in relation to an offence, a court may take into account —(a)any pre-sentence report given to the court;(b)any victim impact statement given to the court;(c)any mediation report given to the court.113.Victim's behaviour and relationship relevantA court may decide not to make a reparation order or to reduce the amount to be paid under a compensation order if —(a)any behaviour, condition, attitude or disposition of the victim contributed directly or indirectly to the loss or damage suffered;(b)the offence was not reported promptly to the police;(c)the victim did not take reasonable steps to assist in the identification, apprehension or prosecution of the offender;(d)because of any relationship or connection between the offender and the victim, it would be just to do so. No submissions were made on behalf of the appellant concerning either the making of or the amount of compensation that was to be ordered. As previously indicated the appellant was represented on 8 March 2019 and 26 March 2019 by an experienced criminal barrister. On those dates the appellant entered pleas of guilty and submissions were made in mitigation of sentence. The quoted amounts for the compensation order were put to the appellant's counsel and were accepted. Notwithstanding the transcript reference to the appellant's counsel seeking instructions on the quotes, the appellant denied that any instructions were taken. At the hearing before this Court on 5 March 2020, the appellant made further, quite serious, allegations against his counsel. It is unnecessary to canvas those allegations in detail other than to record that the appellant's position was that counsel had failed to seek or follow his instructions and that counsel had refused to present a case that the appellant was not guilty of the offence of criminal damage by reason of the landlord and tenant relationship.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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